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Continuing his analysis of a recent study addressing the percentage of wrongfully convicted, Brian Howe writes the following:

As stated yesterday, the National Academy of Sciences study's authors found the rate of wrongfully convicted at 4%. But the authors assume that of the 1320 defendants executed since 1977, none of them have been actually innocent. The authors also assume a perfect success rate for exonerations of innocent defendants who have been on death row for at least 21 years.

Some jurists, even (or perhaps especially) at the highest levels, actually believe this to be true. To Justice Scalia, for example, the fact that no one has conclusively proven the innocence of an executed person is good enough; remarkably, the number of exonerations of people on death row simply shows, in his mind, that the system (the post-conviction system, anyway) is working. See Kansas v. Marsh.(Scalia concurring).

What is especially remarkable about this view is that, for the most part, actual innocence has no place at all in most vehicles for post-conviction review. The study notes that judges are prone to commuting death sentences to life sentences where doubt exists as to the veracity of the conviction. While this certainly happens, these are not decisions that are about "innocence" on their face. Death sentences are typically overturned on procedural bases, and if commutations on procedural grounds benefit the arguably innocent more than others, it is not a function of the actual law, but naked (if perhaps commendable) activism.

As far as the law is concerned, once the trial and direct appeal are over, guilt is presumed and the actual merits of the case are beyond review. Under federal habeas review, for example, strong proof of innocence would have been completely irrelevant until 1995. In Schlup v. Delo, the US Supreme Court decided it would eliminate some (but not all) procedural barriers for federal habeas review in rare and "extraordinary" cases where an inmate could give strong proof of actual innocence. For purposes of this study, then, any procedurally defaulted inmate who filed for federal habeas review prior to 1995, even with strong proof of innocence, would have lost and been counted as actually guilty (again, unless he or she received help from a district court operating outside established law).

Even since Schlup, the Supreme Court has yet to find an explicit independent constitutional violation occurs when someone is wrongfully convicted (although it has presumed one would exist under the right circumstances). Under current SCOTUS precedent, then, innocence will simply get a person's foot in the door to argue other constitutional violations at trial, assuming any occurred. Perversely, procedurally defaulted inmates have to first convince a federal judge of their innocence before being allowed to argue that their conviction should be overturned... based not on their innocence but perhaps on some minor deficiency of trial counsel or other minor constitutional error at trial. In other words, the post-conviction review system that Scalia and others believe will infallibly uncover wrongful convictions is almost exclusively concerned with procedural violations of the constitution, and not at all with whether an inmate is actually innocent.

If actual innocence is undervalued in post-conviction review, and our post conviction system is not infallible at exonerating those on death row, then the percentage of those wrongfully convicted and sentenced to death is actually greater than 4%, and the number of innocent inmates who are actually executed or still awaiting death is unknown.